33 Responses

Is a decision not to prosecute subject to judicial review? If not, would it be appropriate to make it so? Resurrecting a grand jury for such limited purposes seems like a big move.

Also am I right in thinking that a private prosecution has a lower standard of proof than a criminal one? If so, and without any knowledge of the Keith Abbott story, isn't it an appropriate action to bring a private prosecution where the aggrieved party is reasonably sure of a result?

I think wrt the Naitoko case a grand jury system would be cheaper than the sort of independent police complaints commission that has evolved over here in the UK. For one thing such a body would have too little to do in New Zealand which would lead to inevitable function creep.

There are a number of incidents of police here in the UK shooting innocent people and not being brought to book for it that has induced real fear amongst people. The Menezes case was only the latest. There was the Glaswegian in London shot for carrying a table leg. The man woken by armed police bursting into his bedroom shot in bed while naked. The introduction of tasers is also making people fearful.

In the NZ situation having something like a Grand Jury would be an intermittent tool to sample public common sense. If the police don't trust the public to fulfil this role then they will have lost the consent of the public to be policed by them. They should not go down that road lightly. People still remember the The Tour and the Red Squad.

There would also be inherent problems given the scope of judicial review - it generally only looks at process and legality, and in reviews of prosecutorial discretion you may really just be looking at people who disagree with the decision.

There would also be questions of standing: who could file for review? Who would have been sufficiently connected to the case to review the decision not to charge Helen Clark over the art forgery? I'm not sure anyone would.

Also am I right in thinking that a private prosecution has a lower standard of proof than a criminal one?

You are not. The standard in a civil case (e.g. for monetary damages) is lower, but for a private criminal prosecution it is still beyond reasonable doubt.

An iteresting idea Grame and worth serious thought, just how much scope do you think we should give Grand JuriesJust called for infringements with a political background or rather a potential tricky political problems

I am also interested in your thoughts on DepositionsAt the moment they seem to be mostly used as a fishing expedition by the defence and seldom is there a verdict of "no case to answer"and just add to Court time.

At the moment they seem to be mostly used as a fishing expedition by the defence and seldom is there a verdict of "no case to answer"

The main utility of depositions isn't about getting to a finding of no case to answer, but rather narrowing the scope of trial. By having an initial go at the evidence, both prosecution and defence can make the trial proper - before the jury - much simpler. Without depositions (or with the more narrow depositions now in place) there is the fear the jury trials may grown much longer.

Also more often than a "no-case to answer" depositions can result in an earlier conclusion to the case. The prosecution can realise they've over-charged (either in the type or number of charges) or the defendant can, having seen some of the evidence presented in a more informal manner, have seen enough to plead guilty.

There would also be inherent problems given the scope of judicial review - it generally only looks at process and legality, and in reviews of prosecutorial discretion you may really just be looking at people who disagree with the decision.

I thought that the scope also extended to the substance of a decision in some instances. Presumably those reviews are initiated by people who disagreed with the decision.

There would also be questions of standing: who could file for review?

How about the people directly affected by the actions of the individual being investigated?

Feelings that police are protecting their own, or are bowing to political pressure, are best avoided, but they should not be avoided by the "prosecute first, ask questions later" solution some seem to be proposing.

G.,Regarding the first half of this, do you not think that the possibility of those things needs to be guarded against? Or am I (as so often) missing something?

How about the people directly affected by the actions of the individual being investigated?

So Steven Wallace could have for being shot (if he'd lived), but his family cannot (given that he didn't)?

Why could no-one have challenged a hypothetical decision not to charge Phillip Field, if they thought the police were not doing something about him because he was a Government minister?

I thought that the scope also extended to the substance of a decision in some instances. Presumably those reviews are initiated by people who disagreed with the decision.

People give it a go, but they frequently lose these sorts of challenges. The courts do tend to give quite a bit of leeway to decision-makers.

do you not think that the possibility of those things needs to be guarded against?

Yes. But for some people it will not be enough. For some people, any time a police officer (or government MP) isn't charged over something, or an opposition MP is, they will perceive favouritism, or interference, or cowardice.

We should try to avoid both the reality of a neutered police force, and the perception of it.

The PCA completed their investigation, and found that Abbott's shooting was justified. Just like every other investigation. The IPCA has now opened its own investigation, with a purview that includes whether or not all options were pursued, amongst other things. It's considered to be their demonstration that they really are independent, rather than just a renamed-and-prettied-up PCA, and a way of stamping the IPCA's mark.Of course, one hopes that they don't persecute Abbott yet again. They potentially could, since they can make recommendations for disciplinary action (obviously a prosecution is out, since he's been acquitted already), but I can think of few courses of action more divisive, unhelpful and destructive than doing so.

I quite like the idea of a grand jury to decide if certain crimes of significant public interest should be prosecuted. As a minimally-considered group of limitations, I would suggest any corrupt practices offence by an elected official (thinking specifically of the Field case, since it's been mentioned already), and any offence by a police officer that carries a jail sentence of 14 years or longer. That rules out the garden-variety assaults, keeps in the aggravated offences, serious sexual offences, and murder/manslaughter. Since they can recommend a lesser prosecution, the officer responsible for Friday's shooting could still be put before a grand jury and subsequently charged with careless use of a firearm, or even not prosecuted at all, despite potentially being charged with manslaughter (and thus under the hypothetical grand jury's purview).Such limitations would see a grand jury convened only a handful of times each year. The biggest challenge would be the logistics of such an infrequently-utilised body, since it could be convened in any part of the country with a High Court, but wouldn't be meeting in any particular place. The three cases that've been mentioned in this post, Abbott, Field, and last Friday, would've required a grand jury in each of New Plymouth, Wellington (Field was charged in Wellington, wasn't he?), and Auckland. Auckland and Wellington would probably see more than most others, with their respectively large population and role as the centre of national government, but that doesn't preclude other centres from having need of the services of a grand jury. Corrupt local body politicians can happen anywhere (the fact that it really doesn't is pretty incredible, and a testament to the integrity of the people involved), as can possibly improper conduct by the police. Should probably add in SFO prosecutions for matters involving public funds as another matter for this notional grand jury.

I think that the US abuse of compelled testimony, prosecution by politicians and the investigation of non-crimes (such as in the McCarthy and Clinton cases) has rather discredited the Grand Jury, at least under that name.

Has NZ ever considered having an independent prosecutor in the Scottish fashion? Or indeed going further and having an investigating magistrate after the fashion of Continental Europe? (In many European states, the judiciary is a career separate from private legal practice rather than a sequel to a career as a lawyer).

Some good ideas. A properly independent review of controversial police actions, whether it be a judge or a jury doing it, would serve to enhance the reputation of the police if they acted lawfully and appropriately. If they did not, it would quite righteously discredit them. The idea of in-house investigations and disciplinary action might actually be working, but the problem is there is no way the public can be confident of that.

I think they should still do the in-house stuff, but come at it more from a "How can we make things work better next time" and "Was it ethical? Was it how police themselves would like to see it work?" angle.

A stockbroking firm I worked with in Australia took that approach. They were charged with insider trading, and acquitted, but in the course of the trial it came out that some pretty shocking attitudes prevailed amongst the brokers towards minorities (in this case Jews), and led the firm to thoroughly overhaul it's internal approach to ethics, which had been basically informal until then. A heck of a lot of good stuff came out of that, making it a much friendlier environment to minorities and women. This is kind of the opposite of what Graeme is saying, but what I'm driving at is that it shouldn't be a binary choice between internal and external reviews. Both can drive useful change, even where one of them (the insider trading prosecution) acquits due to insufficient evidence (which is the whole not-guilty vs innocent thing).

If the purpose of the PCA is simply to recommend conviction or not, then the police have lost a powerful tool for internal improvement. If that purpose is served by an independent body, geared towards litigation, with wide ranging investigative powers, then the internal one can be much more 'constructive' rather than 'adversarial' in it's role.

There's another abuse in the US from the Grand Jury system (at least IMHO) - some places have standing Grand Juries (empaneled for a year or more) who go out looking for things to prosecute on their own - this can result in someone on the jury with a gripe pulling in people they don't like

People on standing grand juries also tend to not be representative of the public at large, while they are typically pulled at random from electoral rolls they consist of people who have the time to sit on such a thing (usually older, retired people)

If the purpose of the PCA is simply to recommend conviction or not, then the police have lost a powerful tool for internal improvement.

That is not its purpose. Indeed, it often waits (waited?) for criminal proceedings to be completed before making its reports.

A properly independent review of controversial police actions, whether it be a judge or a jury doing it, would serve to enhance the reputation of the police if they acted lawfully and appropriately ... The idea of in-house investigations and disciplinary action might actually be working, but the problem is there is no way the public can be confident of that.

The Independent Police Conduct Authority, the replacement of the Police Complaints Authority, is supposed to be independent, and is headed by a High Court Judge with the aim of ensuring that. When it was the PCA it was also supposed to be independent (and was headed by the same judge) but its investigators were generally seconded detectives. I'm told that the IPCA's investigators tend to be retired detectives.

Has NZ ever considered having an independent prosecutor in the Scottish fashion?

It gets mentioned occasionally, but I don't believe it's received serious consideration.

Or indeed going further and having an investigating magistrate after the fashion of Continental Europe?

Far less likely. The possibility that an inquisitorial system might be used for sexual offending is mooted occasionally, but beyond that germ of an idea, I suspect our only body run along inquisitorial lines will remain the Waitangi Tribunal.

For one thing such a body would have too little to do in New Zealand which would lead to inevitable function creep.

According to its annual report:

During the year, the Authority received 2073 complaints and accepted 1690 for investigation1 (either by the Authority or by Police under the Authority’s oversight).

I'm not sure if they're short of things to do.

I think that the US abuse of compelled testimony, prosecution by politicians and the investigation of non-crimes (such as in the McCarthy and Clinton cases) has rather discredited the Grand Jury, at least under that name.

Didn't Clinton lie under oath at a hearing of a sexual harassment case? And then admit that he'd lied?

Just because he didn't get impeached because no democrats in the senate voted for it, doesn't make it not perjury. Just politics!

The trial judge in the harrasment case at a fairly early stage ruled that, even if Clinton had behaved as alleged, he hadn't committed any offence. Consensual sex between adults is not a crime, or even a tort, in the US. It might be squicky, but it isn't illegal to poke the payroll.

actually technically Clinton was "impeached" - in the US impeachment is essentially the same as "indicted" - there the house acts as a Grand Jury and decides to prosecute ("impeach") while the senate acts as a court and tries the subject. In Clinton's case he was impeached by the house but not found guilty by the senate

I think that the US abuse of compelled testimony, prosecution by politicians and the investigation of non-crimes (such as in the McCarthy and Clinton cases) has rather discredited the Grand Jury, at least under that name.

Didn't Clinton lie under oath at a hearing of a sexual harassment case? And then admit that he'd lied?

Just because he didn't get impeached because no democrats in the senate voted for it, doesn't make it not perjury. Just politics!

I had understood that the issues being raised were around the Whitewater grand jury investigation, and had nothing to do with the impeachment.

Clinton was found in civil contempt for his false testimony in the sexual harrassment case, and was fined $90,000.

Come on Graeme. I expect better of you.The Clark case was not a case of forgery, what was forged? neither the painting nor the signature.The fact of the matter is Ms Clark autographed the back of a painting that was donated to raise funds for the party. She never claimed to have painted the picture. The fact that some saw it as some kind of blatant act of deception was because of a political "beat up"*sigh.

The Clark case was not a case of forgery, what was forged? neither the painting nor the signature.

The police determined that it there was sufficient evidence to charge Clark with forgery over the matter, but elected not to prosecute because there was no public interest in doing so. I happen to think that was the right call (as were most or all of the other decisions not to prosecute Labour MPs/ministers), but with the police determining they had enough evidence I don't think the public perception can all be put down to a political "beat up".

Also, I referred in shorthand to the the "art forgery" because the only political scandal that should even have a -gate suffix is Watergate. I wanted people to know what I was talking about, without calling it Painterga*e, or writing a paragraph.

That said, I had thought that the fellow who intially bought the thing did think it was a painting by Helen Clark. I suspect too that the chartity he bought it off had asked Helen Clark if she'd paint them something, and probably figured they'd gotten such a thing once it arrived.

You may also be interested in the following sections of the Crimes Act:

The events were roughly this:- Paula Jones, a state employee, sued for sexual harrasment, alleging that he invited her to his room and propositioned her.- She called evidence that he had had relationships with other employees to support her case. - Clinton denied this.- the trial judge dismissed the case, on the ground that even if Jones' case was factually proven, it didn't amount to an actionable wrong in state law- Jones' appealed, and as part of this Clinton was pressured to testify on his relationship with Monica Lewinsky, which he did, misleadingly- The Republican controlled House impeached him on grounds of "perjury" and "obstruction of justice"- The Senate acquitted him (conviction required a 2/3 majority)

There are two things that were wrong with this process:- Clinton was compelled to testify as to his legal, consensual and private sexual relationships. Since something that isn't an offence can hardly be part of a "pattern of offending", this was the abuse of the legal system to inquire into a public figure's morals.- Clinton was "tried" by the legislature rather than the judiciary, who can hardly be expected to give a fair trial to a political opponent.

McCarthyism was similar. Rather than prosecute people for being Communists (which would be unconstitutional), suspected communists were compelled to implicate others.

Clinton was "tried" by the legislature rather than the judiciary, who can hardly be expected to give a fair trial to a political opponent.

The Senate trial wasn't a criminal trial, but a trial to see whether Clinton should be removed from office - by its very nature it's political. This isn't the sort of thing you can have conducted by someone else - you want both sides to be accountable to the public for their actions. If the trial (acquittal or conviction) was conducted for naked political motives you want people to be able to vote accordingly at following elections.